Satterthwaite v. Ellis

• Decision Date: 01 October 1901
• Citation: 129 N.C. 67,39 S.E. 726
• Court: North Carolina Supreme Court
• Parties: SATTERTHWAITE et al. v. ELLIS.

39 S.E. 726

129 N.C. 67

SATTERTHWAITE et al.

v.ELLIS.

Supreme Court of North Carolina.

Oct. 1, 1901.

CHATTEL MORTGAGE — ASSIGNEE — RIGHT to POSSESSION—RECOVERY OF CHATTELS— —MATURITY OF DEBT.

1. The assignee of a note seemed by a mortgage on chattels is entitled to the possession thereof.

2. In an action by an assignee of a mortgage of chattels to recover possession of the same before maturity of the note secured by the mortgage, it was proper to render judgment for the absolute possession of the property.

3. Where the assignee of a mortgage of chattels before maturity of a debt seized the property in claim and delivery, it was proper not to allow the defendant the value of the use of the property from the time of seizure to the time of the judgment in favor of plaintiff.

4. Where the assignee of a mortgage of chattels seized the same in claim and delivery, it was not necessary that he should show a demand for the chattels before instituting a proceeding, it appearing that such demand would not have been complied with.

Appeal from superior court, Craven county; Coble, Judge.

Action by L. M. Satterthwaite & Bro. against W. S. Ellis. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

W. D. McIver, for appellant.

MONTGOMERY, J. The plaintiff, who is the assignee of a note and mortgage made by the defendant, brought this action to recover possession of the personal property conveyed in the mortgage before the maturity of the debt, and at the time of the issuing of the summons seized the property under a proceeding in claim and delivery. The defendant in his answer resisted the plaintiff's claim, averring that there was a verbal agreement between the mortgagee and himself at the time of the execution of the mortgage that he should be allowed to remain in possession of the property until the note should fall due, and also set up a counterclaim, and prayed for judgment for a return of the property and for damages for the wrongful taking and detaining the same. Among the issues submitted was one (the fifth in number) as to whether demand was made under the mortgage and note on the defendant for possession of the property before the action was commenced, and another (ninth) as to the value of the use and possession of the property seized from the date of its seizure to the trial, —both issues submitted under the plaintiff's objection. The jury responded "No" to the fifth issue, and "$110" to the ninth. His honor, notwithstanding the finding of the jury on the two issues, gave judgment that the plaintiff recover the property absolutely; the jury having found in response to the first issue that the plaintiff was entitled to the property. His honor instructed the jury, among other matters, that if the jury should find that the plaintiff purchased the note and mortgage from Mitchell (the mortgagee) for value and before it was due, unless they should find that the plaintiff had had notice of the agreement between Mitchell and Ellis (the defendant) that Ellis should retain possession of the property (if they should find there was such an agreement), the plaintiff would not be bound by the agreement, and that the jury should find that the plaintiff was the owner and entitled to the possession of the property, and answer "Yes" to the first issue, and that the fact that the defendant was then in possession of the property was not notice of such an agreement. The defendant excepted to the charge, and the contention of his counsel here was that the plaintiff, as assignee of the mortgagee, had no authority or right to have possession of the property, that being the privilege of the mortgagee only, and that that right belonged to the mortgagee, because, and only because, of the legal title being in the mortgagee; the legal title drawing the right of possession. But it seems to us that the better view is that the assignee was entitled to possession of the property. Under numerous decisions of this court it is held that the assignee of a note secured by a mortgage is entitled to all the rights and privileges which the mortgagee had, except to sell the property under the mortgage; and in Jones, Chat. Mortg. § 501, it is said: "The legal effect of the assignment is to transfer the entire interest of the mortgagee in the property to the assignee, who thereupon, in place of the mortgagee, becomes the general owner. If the mortgagee was entitled to the possession of the property, the legal effect of his assignment is the same as if he had...